The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant Roman Jones was charged in a two-count indictment with unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for one year or more, and simple possession of marijuana. Jones moved to suppress at trial evidence recovered from his person and from a subsequent search of the car in which he had been seated, arguing that the evidence was the fruit of an unreasonable seizure of his person. Because the government has failed to carry its burden of justifying the police officers' warrantless seizure of Jones under the Fourth Amendment, by showing that it stemmed from an encounter that either was consensual or was supported by reasonable, articulable suspicion of criminal activity or probable cause, defendant's motion to suppress will be granted.
The evidence in this matter was adduced from Metropolitan Police Department Officer Robert Cephas, Jr., the government's sole witness at the hearing held on Jones's motion. On May 8, 2002, Jones and another man, Lucas, were seated inside an Oldsmobile Delta 88, parked in the area of the 100 block of Yuma Street, S.E., in Washington, D.C. Lucas was in the driver's seat and Jones was in the front passenger seat. (Tr. at 3-5, 7, 17.) The Delta 88 was stationary in a vacant lot and was not parked illegally. (Tr. at 16, 17.) The area of the 100 block of Yuma Street is a "high narcotic area." (Tr. at 7.) It was approximately 8:00 p.m., and it was not dark outside. (Tr. at 17, 37.)
Cephas saw Lucas jump out of the driver's seat of the Delta 88 and walk away from the car very quickly. (Tr. at 4, 7, 17.) Cephas and Officer Schuler were approximately 40 to 50 yards away on routine narcotics patrol. (Tr. at 3, 5.) Lucas' movement aroused suspicion, and led the officers to conduct what Cephas called an investigatory stop. (See Tr. at 16-17.) The officers drove their unmarked police cruiser toward the Delta 88 and stopped about 14 feet away, with the hood of the police cruiser facing the hood of the Delta 88. (See Tr. at 4, 17, 37-38.) The cruiser was recognizable as an unmarked police cruiser. (Tr. at 14.) Cephas and Schuler, joined by Officers Rollins and Huxoll, walked at a quick pace toward the Delta 88. It took the officers about five to eight seconds to walk about eight or nine steps to the car. (Tr. at 38-39, 44.)*fn1 Cephas and Huxoll stood at the driver's side of the car. (Tr. at 25-26.) Schuler and Rollins stood at the passenger side. (Tr. at 25-26.) Cephas was dressed in plain clothes, but each officer wore a blue and gold Metropolitan Police Department raid jacket bearing a badge on the left breast pocket of the jacket. (Tr. at 11, 37.) The words "Metropolitan Police Department" appeared on the back of each jacket and the letters "MPD" appeared on the sleeves of each jacket. (Tr. at 37.)
Jones was seated in the front passenger seat with the window down. (Tr. at 5, 7.) At that time, Cephas saw no illegal activity, nor did he believe any other officer mentioned seeing any evidence of illegal activity. (Tr. at 26-27.) Cephas did not see Jones make any furtive gestures or any movements as if he were putting a gun under his seat, nor did he believe any other officer mentioned seeing such movements. (Tr. at 19-20.) Schuler asked Jones if there were any weapons in the vehicle. (Tr. at 5.) Cephas, standing on the other side of the car, could not hear Schuler's question. (Tr. at 40.) It was not noisy outside. (Tr. at 40.) Jones answered, "All I have is this bag of weed," and Jones handed Schuler a ziploc containing a green weed. (Tr. at 5, 9, 28.) Schuler told Jones to get out of the car. (Tr. at 28.) Schuler got Jones to put Jones's hands on the car and Schuler attempted to handcuff Jones. (Tr. at 5-6.) Jones pushed Schuler, broke free, and fled from the car. (Tr. at 5-6.) Cephus chased Jones without success. (Tr. at 5-6.)
Huxoll put his head in the open window of the front passenger door and saw a gun protruding from under the front passenger seat. (Tr. at 30-31.) When Cephas returned to the Delta 88 and learned of the gun, he was able to see the grip of the gun by putting his head in the same window of the car. (Tr. at 8, 30-31.) Officers later recovered from the glove compartment of the Delta 88 a scale and 55 ziplocs of white rock which tested positive for cocaine. (Tr. at 33.) They also determined that the car was registered to a Charnita Chandler. (Tr. at 35.)
Following Cephas's testimony, the court asked the government whether it had any other evidence, and the government replied that it did not. (Tr. at 46.) The court expressed concern regarding all of the key questions to which Cephas did not know the answer bearing on whether a consensual police-citizen encounter or seizure had occurred, such as whether any approaching officer brandished a weapon or handcuffs, whether officers issued other commands to Jones or asked Jones other questions, whether officers asked for and retained Jones's identification, and what tone of voice Schuler used in questioning Jones. (See Tr. at 61-62, 65, 70-71.) The government did not ask to supplement the record or continue the hearing.
Generally, "[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978)(citations omitted). However, "if a defendant produces evidence that he was arrested or subjected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search." United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977); see United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994)("As to the warrantless encounter, [defendant] bears the burden of proving whether and when the Fourth Amendment was implicated. . . . The government then bears the burden of proving that its warrantless actions were justified . . . .") (footnotes omitted); 6 Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(b)(4th ed. 2004)("if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution").
Here, the defendant's burden of showing that he was subject to a warrantless seizure was met. Cephas testified that Schuler told Jones to get out of the car, at which point Schuler attempted to handcuff Jones and place him under arrest. The officers did not obtain a warrant before taking this action. Furthermore, the government conceded at the motions hearing that Jones was seized at the time the officers were placing him under arrest. (Tr. at 78.) Therefore, the government bears the burden of justifying this warrantless seizure. The government argues that the seizure was lawful because the encounter between the defendant and the officers was initially consensual or voluntary, and probable cause to arrest the defendant for possession of marijuana arose when the defendant handed Schuler the ziploc containing a green weed. (Tr. at 59-60.) The defendant argues that he was seized without justification as soon as the officers arrived at the car, and that the statements and physical evidence derived from that point forward are tainted fruits that must be suppressed. (Tr. at 49, 58-59.)
I. LAWFULNESS OF THE SEIZURE
A. Consensual Police-Citizen Encounter
"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Florida v. Royer, 460 U.S. 491, 497 (1983)(plurality opinion)(citations omitted).
The "crucial test" for determining whether police conduct crosses the threshold from a consensual police-citizen encounter to a seizure or forcible stop is "whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Florida v. Bostick, 501 U.S. 429, 437 (1991)(quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).
A court's analysis should "take into account all the objective circumstances of the encounter . . . ." United States v. Lewis, 921 F.2d 1294, 1297 (D.C. Cir. 1990). Relevant factors in this analysis of whether the encounter was consensual include "the time of day, the place, the officer's tone of voice, and whether the officer displayed a weapon or handcuffs, wore a uniform, touched the individual without permission, threatened or physically intimidated him, or retained his identification[,]" id., what if any commands officers gave to the individual during the encounter, the number of officers involved in the encounter, the number of officers involved in the encounter, and whether the officers blocked the individual's path of exit. See, e.g., United States v. Drayton, 536 U.S. 194, 195 (2002) (considering facts that there were no threats or commands given, nor were exits blocked, during the encounter); United States v. Wood, 981 F.2d 536, 543 (D.C. Cir. 1992)(noting that during encounter, officers were positioned such that defendant's movement was restricted in apartment entranceway, and that officer told defendant to stop); United States v. Tavolacci, 895 F.2d 1423, 1425 (D.C. Cir. 1990)(considering fact that although three officers were present, defendant could see only two). While this list is not exhaustive, the D.C. Circuit has required consideration of these factors. The absence of evidence and findings concerning key factors in the analysis can preclude a holding that a warrantless police-citizen encounter was consensual. See, e.g., Florida v. Bostick, 501 U.S. at 437-40 (declining to determine whether a seizure occurred and remanding because state trial court made no express findings of fact and state Supreme Court made decision based on a single fact rather than a totality of the circumstances); United States v. Jordan, 951 F.2d 1278, 1283 (D.C. Cir. 1991)(where officers could not remember whether they saw or retained defendant's documents during the interview, and district court did not make clear its factual findings on this point, court remanded for clarification).
Several facts surrounding the police-citizen encounter in this case could support the argument that the encounter began as a consensual one. It was 8:00 p.m. and still light outside. The officers did not block the path of the Delta 88 with the police cruiser; rather, the officers parked approximately 14 feet away. Cephas was not wearing a uniform. The officers approached the defendant at a deliberate but not hasty or rushing pace. When Schuler asked Jones whether there were any weapons in the car, Schuler's voice must have been at a moderate to low volume, because Cephas was only a car's width away and did not ...